Obama and Notre Dame – a Belated Follow-Up

Although the subject of President Obama being honored by Notre Dame has quickly cooled in the fast-paced blogging universe- I wanted to weigh in with some comments because I think it is important to hold the President to account on some of the promises he made in his speech, and to offer some ideas for how Catholic universities should approach such political intersections in the future.

I watched CNN’s coverage of the Notre Dame Commencement, and listened to the entire speeches by Rev. Jenkins and President Obama. My first thoughts were concerning the overt bias of the CNN anchor, Fredericka Whitfield; she seemed to be primarily concerned with defending Obama on all fronts. She seemed to be ignorant of Catholicism and the way Hierarchy plays out in orthodox Catholic theology. This is no surprise, most reporters are secular in the extreme, but it would have been more professional for CNN to have a special anchor that specializes in reporting on religion and theological issues. Whitfield also seemed completely biased on the abortion issue, preferring the expression “a woman’s right to choose” when talking about it, rather than say, “right to life for the unborn”. If a reporter is going to play a legitimate devil’s advocacy role, then they have to play it both ways when they have competing parties being interviewed. It was my impression that Fredericka was so favorable to the pro-Obama side of things that she offered up only friendly soft ball questions to Rev. James Martin, who was a gushing Obama supporter. Raymond Arroyo, of EWTN, represented the anti-Obama position, and he seemed to be consistently under attack or belittled by Fredericka. I think some letters to CNN concerning Fredericka’s overt bias would be in order.

As far as the larger issue of Obama being invited to the Commencement and being awarded an honorary doctorate, my views sit between the two hardliner camps. I oppose the giving of honorary doctorates at Catholic universities, to politicians who have fundamental disconnects with our social doctrine, and consistent advice on important issues from our Bishops’ and Holy See. Obama is very much opposed to the legal protection of the unborn, and takes a very liberal view on sex and marriage issues. He should be disqualified as a recipient of any high honor, which would indicate that he is intellectually consistent with the mind of the Church on important social issues. To be fair, I would also oppose giving honorary degrees’ to a Ronald Reagan, George W. Bush, or even John McCain. I think that any serious reading of the Catholic social doctrine on international relations, war and peace, global economics, and environmental stewardship, as found in the formal teaching in encyclicals, (like Pope John Paul II’s “On Social Concern” relating to relations between nations), and the authoritative Compendium of the Social Doctrine of the Church.

Of course, many self-described conservative Catholics may dispute my contentions here but I find that they usually try to draw attention away from most of the social encyclicals, and they studiously ignore the Compendium in favor of pet secular economic theorists like the “Austrian School”. So we will have to agree to disagree on this- though my confidence comes from an intense study and love for the formal documents which make up the corpus of our entire Church social doctrine- not just the ones relating to the abortion issue.

I would go further in this line of consistent criticism of the American political Left and Right. I don’t believe that the state’s rights approach to abortion rights is truly consistent with Catholic social doctrine. The juridical philosophy called “Originalism”, which is championed by many Catholics supportive of the American political Right, is not one that is rooted in Natural Law. It is legal positivism, and its deepest point of reference is American law, not the underlying natural law, but rather the original intent of those who first formulated our national Constitution. So, we have the judicial activism of the Left, which bends with the spirit of the age, and the “Originalism” of Scalia and Thomas et al, which doesn’t recognize the rights of the unborn because these type of human lives were not in the minds of those who originally wrote up our Constitution- so the American Right feels that it can wash it’s hands of the abortion issue, by simply sending it back to every state. It is a feel-good strategy for those who want to be intellectually consistent, but it is morally inadequate in dealing with the demands of natural law- something that both the Left and Right have decided to jettison in American legal reasoning.

Getting back to Obama’s Notre Dame Address, I think there is a need to follow-up on a couple of fronts. I liked Kenneth Woodward’s Newsweek online commentary, “The Lessons of Notre Dame”. I had similar thoughts about how Obama needs to be pressured to start putting his money where he is mouth is- when it comes to abortion reduction goals. Why hasn’t Obama embraced the Democrats for Life proposed legislation- Pregnant Women’s Support Act? This is something that has the support of the Catholic Bishops, and is clearly a no-brainer for anyone who feels that there is a role for government to address the root causes of abortion choices. The Catholic Left and Right should be combining forces right now to push this legislation, it addresses the fact that a huge percentage of women are claiming that their abortion choice is one made because they are attempting to complete or start Higher Education, and an unplanned pregnancy has threatened to sidetrack their just ambitions for a better future. Certainly, I cannot agree that this reality justifies the killing of the unborn, but it is a reality that must be faced as long as abortion remains a legal option, and even so if women would seek illegal abortions for such reasons (the goal is to save lives, not just change laws). PWSA addresses these types of concerns, and would save a lot of lives; I have no doubt about it.

President Obama promised to be a leader who helps unite and assist the process of finding common ground on abortion. Well, PWSA is one concrete way to do that, and forming a national committee on abortion would be another. This should be a very public, very active, committee that is formed to address the questions of how we as a nation can protect the unborn, and assist women who are the ones who are choosing abortion for various reasons (and what about fathers?). If Obama wants spirited public debate, and not just easy public relations that sidestep the true believers, then he must form this committee. He openly praised a similar Civil Rights committee from the past, he used the comparison to today’s controversy over abortion- so we need to help make this happen- using his own words to demand action.

Finally, Notre Dame failed to use the Commencement Day to its full potential. Rev. Jenkins failed the first test by offering Obama an honorary degree- he would have failed if it had been a President John McCain, as well, in my humble opinion. But if he had simply invited a sitting President to come and speak at the Commencement, without the honorary degree, then he could have been the gracious host, and opened up a vigorous debate on the issues of Life, within the context of the Commencement. What better way to seal an experience of Catholic Higher Education? One doesn’t have to be rude in order to challenge those in power, or those with whom you disagree. Rev. Jenkins and Mary Ann Glendon could have combined to offer a direct challenge to Obama’s beliefs about abortion and embryonic stem cell research. Without the honorary degree in the way, Notre Dame could have used the opportunity of the President’s visit to give him the facts on abortion and the rights of the unborn, which is what we must do repeatedly with those who are in serious error on fundamental moral issues (never just assume someone is completely knowledgeable and culpable). This type of sharing would not have been only something for the President’s ears only; the graduates, their families, and much of the nation could have benefited from such a presentation. This is the type of thing that does more to change hearts, and we could have avoided the necessary scandal of pro-lifers trying to shout down the President of the United States during a speech. We need to constructively engage, whenever we can. Notre Dame could have set up that opportunity, but failed. And the Catholic Left is failing to challenge a leader from the Left, similar to how the Catholic Right failed to challenge a leader from the Right on the issues where there is a big disconnect from our public Catholic social teachings and prudential judgments following those teachings from our Hierarchical Catholic leadership.

We should learn from the Notre Dame debacle, and find our own common ground in the Catholic Left and Right- the basis for this common ground should be a shared study of the Compendium of the Social Doctrine of the Church, and one devoted to the upcoming Social Encyclical of Pope Benedict- which should be coming out later this month. I, for one, can hardly wait!

25 Responses to Obama and Notre Dame – a Belated Follow-Up

Agreed 150% on the PWSA as a good common-ground measure. Heck, it’s good legislation regardless of whether it brings folks together or not.

But, if you google around a bit, you’ll find that there is a lot of resistance in left-wing circles to the Act, coming from the mindset of the “reducing pregnancies, not number of abortions” crowd. The PWSA forthrightly (and rightly) presumes that abortions are bad and discourages them, which is a no-no in those circles.

Given that the President appears to share that mindset, I think the odds of him putting his clout behind the PWSA are vanishingly small at this point in time. If/when he needs pro-life Democrats to get something he truly cares about passed, then you might see the horse trading.

Sadly enough, I think we’re much more likely to see Rep. Slaughter’s “Prevention First Act” than the PWSA. And, make no mistake, Slaughter is in the hard-core choicer camp.

Father Jenkins- surprise still in his job- received his 15 minutes of fame. Dear Leader received another day of adulation. Both care about the unborn about as much as the crumb sitting on my desk. By me. Lovely rhetoric about Dialogue and such. But no other significant issue- and this is as significant as it gets- is more polarizing. Designed to be no other way. Tim notes those rare creatures known as pro-life Democrats- endangered species who should receive legal protection. Perhaps Dear Leader will open up TARP money for Planned Parenthood and non-franchise clinics. Might have the same beneficial effect as to Ford and Chrysler. Oh, just to note before posting- Tiller The Killer’s big time abort business is shutting its doors. What a shame. Maybe it could have qualified for TARP funding.

(2) I don’t know what you mean by the “American Right” wanting to wash it hands of abortion by sending it to the States. First many on the right are for the Human Rights Amendment. ALso the “AMerican Right” would be working in their respective State legislatures to prohbit abortion. Activity does not stop just because it does not happen in the District of Columbia

(3) Archbishop Chaput said recently there was no “Catholic way” to the interpret the Const. I think he is right.

(4) what you refer to as States Rights is more commonly know as Federalism that has not been abolished. I think if you are proposing that getting this issue back to the States is against Catholic SOcial Doctrine you need to flesh that out some.

(5)THere are Natural Law folks on the right such as Arkes and Robert George etc etc that are trying to influence the Court and polticy

(6) There is nothing to probhibit Legislators from legilsating based on the Natural law

I will grant that labels like American Political Left and Right are very general- but I think that those who feel comfortable self-labeling themselves liberal or conservative, will fit those larger categories. I reject these labels for myself because I believe like Archbishop Chaput- I use his great book “Render..” in my classes- that there isn’t going to be a Catholic political party- as the Compendium states we are always to be critical members of any political party- that implies that there is always going to be an incompleteness in any purely political party.

I don’t mean to take a cheap shot on those who take the Federalist position, that abortion can only be resolved at the state level because that’s how our Constitution was written- but I advise all Catholics to read Notre Dame prof. Rice’s book on Natural Law. He describes Justice Thomas as pretty much putting the idea of natural law reasoning to death, when he backtracked during his confirmation hearings on previous positive assertions on the role of such reasoning in juridical decision making. I do view Scalia and Thomas quite negatively for the way they come across in interviews when they seem proud to assert that their Catholicism has absolutely nothing to do with their work as Justices- I don’t think anyone in any position should say that- the natural law is everyone’s responsibility- especially those with juridical and political power- this is an intellectual dodge- even if it is an honest one- to come across as some kind of progressive, non-partisan in contrast with those who do use reasoning beyond the deciphering of the original intent of the Constitutional framers.

Professor Rice says that on abortion we don’t even have to pull out the natural law trump card- it would be rare to have to do that given that much of positive law in the Constitution is already rooted in natural law reasoning- if we apply the 5th and 14th Amendments to the unborn, we would be good to go- but this is not on the radar in the Scalia/Thomas circles as far as I know- and I would say that these Justices are very well regarded in general by conservatives/ American Political Right.

I am offering a critique that isn’t designed to play well to liberals or conservatives, I don’t think Jesus played to such narrow audiences, and I don’t find the complete social doctrine of the Church to be in conformity with any ideology that I’ve encountered thus far- so I work in both liberal and conservative circles depending on the issue- but sometimes neither camp seems to get it right- like on abortion- the liberal juridical approach is ice cold, while I grant the Scalia et al approach is luke warm- not sure I can get on board with lukewarm even if it offers a legislative endgame in every state. I want the unborn to be safe in every state, all over the world- the Law should reflect this- the Law must reflect this, and then all other aspects of society will need to reform to adjust to this reality- economically, culturally- all of it needs to upgrade to deal with the children we will be welcoming into the world instead of terminating.

Subsidiarity is not to be viewed apart from the universal common good and solidarity- it also isn’t a replacement for the natural law requirements for all people- Catholic or not. This emphasis on natural law is found throughout the social doctrine and papal encyclicals

Thank you for a thoughtful diary. Another bill that I hope starts gathering support is the “Newborn Child and Mother Act”. Approximately 1500 mothers die in childbirth across Africa EVERY DAY. I gather most of their babies die, too.

Let me say I am not saying that Natural Law Jurisprudence is forbidden. As Arkes says where in the Const does it forbit it? I am just saying that if lets say a Catholic Judge does that think that was part of the Document then I think he can in a valid way interpret it otherwise. I mean in the end his Power and authority come from the Document or the “Pact” as it were. So when Scalia looks at the text he does not that think he has the power to change it

It is in a sense similar to the situation of the Federal Judges that lets say were anti Slavery. They might have been anti Slavery but because their power and authrotiy came from an agreement that made an compromise with this evil they very well could not just ban it nationwide.

Again as to Natural Law and the Social Compendium what should Catholic Judges do. I can’t imagine that they would start citing the Comepndium of SOcial Justice. In fact what authority would they have to base Opinion on that at all.

I am not sure Scalia or THomas for that matter have an agenda to end abortion nationwide. I think they probally think that is not their job but the job of the legislator. I strongly suspect that Scalia thinks Gay marriage is wrong. However I doubt he would think he ahd any authority to “ban” it in lets say Iowa.

TO quote Chaput in Full
“CHAPUT: The Supreme Court doesn’t make law, as we know. It interprets the law. I think it’s much easier from a moral perspective to be a justice – a judge – than it is to be a legislator. Legislators are the ones who make laws and change laws. But to interpret the law in its fidelity to the Constitution is a much less morally compromising kind of position to have, I think.

I’d rather be a justice than a politician, in terms of dealing with my conscience, because if we write bad laws in this country that are constitutional, then the judges – the justices – have to interpret the laws as allowed by the Constitution, even if they don’t like them, even if they would think they’re not good for the country, it seems to me, even if they think they’re not moral. That’s what justices do. So I had the impression that Wendy thinks that the Supreme Court writes the law. Certainly that’s not my impression. I know it can’t write the law. In terms of not wanting all the justices to be Catholics, I agree with you, Michael. That would not be a good idea in the United States”.

Now I think Judical attitudes matter that is for sure. The attitude of the Iowa Supreme Courts Justices was frightening as they basically shot down arguments because they thought they could smell religous intent.

I just think from a Natural Law standpoint that the key is if one wishes to adovcate that is to start in the legilatures. That is where the action is.

“Subsidiarity is not to be viewed apart from the universal common good and solidarity- it also isn’t a replacement for the natural law requirements for all people- Catholic or not. This emphasis on natural law is found throughout the social doctrine and papal encyclicals”

Well Tim I don’t think Federalsim gets rid of that. I mean what is changed or what is at issue is what branches of the Governements have the responsibility, power , and authority to act as to the common good or solidarity.. As to the abortion question is it the States or the Federal Govt or a combination of the two.

What other aspects of the natural law should the Justices be concerned with? Should a Catholic-based interpretation mandate that all homosexual acts be outlawed? Should a natural law view of the Constitution mean a ban of contraceptives? How far do we take this? And what do we do when we have a majority of Justices whose interpretation of the natural law leads to conclusions quite the opposite of our own?

Let me clear I am not saying that Natural law Juridprudence cannot be had. As Arkes says where in the COnst is it forbidden.

I just think that if you really want Natural Law and to have it part of our system one needs to start with the legislature where the real action is at. THat is not to ignore the Judiciary. We should recall that Iowa Supreme Court mandated Gay marraige and in that argument they shot down opponets of it because they say said they could smell religious reasoning. That is a problem

I am not sure at all that THomas and Scalia have a “plan” to end abortion. I suspect they don’t think that is their job but that of the legislature. Just Like how I think that Scalia is against gay marraige but I could never seem him overturning a state law allowing it because it goes against the natural law or because he does not like it.

I suppose if we are going to get natural law more in the discussion first the Catholic schools nned to be teaching it more.Then we are going to have to have an discussion with our neighbors about it.

Political parties are not going to be able to do that. In fact in GOP circles where such an approach has fans in some segments there would have to be some on the evangelical side that would have to embrace it. SOme are open others are wary.

So as to Natural law principles I think there is a lot of work to be done before we can expect polticos to start using it. In fact we might need to breed a whole new generation of polticos that understand it.

When I talk to Catholic about the natural law it sometimes seems like they look at me like I am from Mars. That has nothing to do with left, right, or center but just horrid Catholic education in the Puplit, in CCD , and in the schools.

As to Catholic social justice concerns and principles I think there will be porgress till each “side” that is engaging this start talking to each other instead of yelling at each other.

Of course subsidiarity is to be seen in the context of the common good and solidarity. Just as solidarity is to be seen in the context of the common good and subsidiarity. The claim of solidarity does not rule out allowing more basic units of society tend to the common good. Catholic Social teaching never says this. In fact higher units of society are to take over only when lower units cannot meet a common need. States rights fits perfectly in this framework.
When to allow higher units to take over from lower is a prudential judgement in many cases and you will not find such a criteria in the Compendium.

My impression from reading the social doctrine is that the common good is the only real reason for having governing authority in the first place- when this focus is lost then that authority can soon run amuck- I do not dispute or ignore the principle of subsidiarity but we are talking about abortion here, and that is something that cannot be left to even a popular vote- it smacks of the whole scene with Jesus being condemned by popular vote, and Pilate standing by, washing his hands of the affair, even as he seemed to side with Jesus on the level of basic justice- Pope John Paul II even used this comparison with abortion and Christ with over-reliance on democratic outcomes in determining all important matters- now Pilate has not gone down in history as a heroic figure- and I don’t think that a State’s Rights approach to abortion is going to be seen as the best we could do at the level of civil authority.

We have a problem with subsidiarity as a primary principle to view abortion or the global economy through right now- with the power of multinational corporations usurping even the power of national governments- read Bailouts- it would seem that the local government powers have not kept up with the times- and Free Trade Pacts have taken economic decisions far afield from local control. With abortion, we simply have to have everyone doing what they can with whatever power they have to establish the legal and moral sense that an unborn child is worthy of our human rights. Natural Law reasoning does not have to be overused to the point where we have an effective theocracy- but we ignore the Natural Law to our own peril as a nation, as a people.

Again- I cannot go into the detail here on this as Professor Rice did in his book- 50 Questions on the Natural Law- if anyone has read that book and has any comments I would love to hear of your thoughts. I think he represents the most orthodox Catholic position on the importance of Natural Law, and how we can promote it without having to force the nation to convert to Catholicism wholesale. There is something religious behind the Natural Law, and the Catholic social doctrine is a necessary guide- but the Natural Law is something reasonable and can be argued with non-believers and believers alike. We cannot continue to cede everything to the secularists- at some point we have to fight for more than merely symbolic gestures like Nativity Scenes on government property- we need Catholics willing to stand behind Natural Law reasoning and Catholic social doctrine- the Natural Law reasoning is all we need to use in public debates, and all the Justices need to make certain that Justice prevails when opportunity comes for them to render decisions that obviously offer life and death for many. Imagine if genocide came up for a vote? Abortion is a genocide of unborn, unwanted children- millions of them- if this doesn’t call forth a universal decision on the part of our Supreme Court- then they may as well pack it in, and leave our Capital empty of Justices and Justice.

So a vote on the Supreme Court is legitimate but a vote in the Staer Houses is not. Also one can amend State Const a heck of a lot more easier than you can the U.S. COnst to show these natural law principles

Again it is not a principle of “State Rights” but Federalism. I am not saying fight for a Human Rights AMendment. In fact I suspect that a HUman Ruights amendments would gain steam when it returned to the States.

You know we can’t just blame nameless polticos in D.C. for not getting the pro-life cause done. It is suddennly much more in our faces where we must convince our neighbors

Its not a problem of seeing subsidiarity as a primary priciple for in fact it is. As are the principles of the common good and solidarity. They are an organic unity. The problem becomes how do we apply these primary priciples to concrete situations. You have your problems with multi-nationals. I have a problem with strong (an ever increasingly stronger) national and international governments. The Compendium does not have a policy to address these. Catholics in good conscience apply the primary principles. At times Catholics in good conscience disagree, sometimes strongly. That’s life in the secualar for the Christian.

Honestly, Tim, I think your argument sets up a couple of straw men that you then proceed to effectively slaughter; I disagree with a couple of your premises, and must, therefore, disagree with your conclusions.

First, I believe you fall victim to the same illogic that drives most who claim to not be “right-wing” Catholics: namely, you choose to lump all Catholic Social Teachings, and abortion, into the same mass and call it legitimately Catholic. I disagree for a couple of reasons:

1. You mentioned that you would have invited neither PResident Obama nor President Bush to speak at Notre Dame, given the authority to make such a decision. You cite both men’s lack of conformity to basic principles of Catholic Social Doctrine as your reason.

This comparison sufers for at least two reasons. first, abortion, and , say, the death penalty are not equivalent issues. The authority to make the decision to mete out a penalty of death rests with duly elected civil authorities. SOLELY with them. And while the Compendium of Catholic Social Teaching may decry the occasional necessity to mete out such a sentnece, and while it may state that the circumstances which should require such a penalty are so rarae as to be almost nonexistent, in the end, the judgment of the circumstances lies SOLEY with those duly elected to exercise such authority.

Similarly with the exercise of war powers. The Church rightly decries the use of military force in *any* circumstance; however, it recognizes the right of governments to enter into armed conflict against those nations or entities which pose a credible threat, and which cannot be subdued by other means. That right flows from the national leader’s responsibility to provide for legitimate defense of its territory and citizens. And the authority to make such a decision rest, again, SOLELY with the likes of President Bush and President Obama.

Man, this is brain-wracking. I will amend my opening statement to include the thought that I can only respond to one at a time.

But i fwe are goin gto use Catholic Teaching to justify our positions, it wold seem prudent…to use ALL of it, not jsut the parts that nicely fit our preconceived schema.

Totally apart from the extremely interesting issues and discussions in this thread, it occurred to me [somewhat belatedly] that Father Jenkins was greatly disingenuous in the reasons he gave for inviting Mr. Obama to speak at the Commencement exercises.

Commencements they are meant to be – but commencements to the world wider than the campus in South Bend.

Now if the graduating students had not pretty well covered the subject – personally and intellectually – in four years’ attendance at the school, what is the purpose of a dialogue about it just as they are about to leave? Surely their teachers must have discussed [dialogued?] the issues during the campaign a year previously.

Tim,I would go further in this line of consistent criticism of the American political Left and Right. I don’t believe that the state’s rights approach to abortion rights is truly consistent with Catholic social doctrine. The juridical philosophy called “Originalism”, which is championed by many Catholics supportive of the American political Right, is not one that is rooted in Natural Law.

Conservative Catholics hold to the belief that the laws of the land should be rooted in Natural Law. They belief that the way to change those laws is through democratic processes which are established in the United States constitution and the constitutions of the several states which it comprises. There is nothing in Natural Law which states that a judiciary should act in contravention of the laws which are established.

Professor Rice says that on abortion we don’t even have to pull out the natural law trump card- it would be rare to have to do that given that much of positive law in the Constitution is already rooted in natural law reasoning- if we apply the 5th and 14th Amendments to the unborn, we would be good to go

I agree completely.

but this is not on the radar in the Scalia/Thomas circles as far as I know- and I would say that these Justices are very well regarded in general by conservatives/ American Political Right.

I’m not so sure, have they ruled that way? If a case came before them which way would they rule? I think you’re mistaken. Those justices have consistently ruled in a way that would allow us to infer they do in fact believe that the unborn are human persons and are protected. Their Catholic faith (and basic empbryology) teaches them that, and there is no contradiction with the Constitution which would preclude them as “originists” in ruling that way.

we simply have to have everyone doing what they can with whatever power they have to establish the legal and moral sense that an unborn child is worthy of our human rights. Natural Law reasoning does not have to be overused to the point where we have an effective theocracy- but we ignore the Natural Law to our own peril as a nation, as a people.

Absolutely, but I think there is limits to what a Catholic is compelled to do given the restrictions of his office, especially if he has taken an oath to be bound by those restrictions. Now, no Catholic is permitted to commit an immoral act regardless of his office, but that doesn’t mean he is obliged to use their office illegally in their actions.

Michael J. Iafrate,

But it does not end there. The authority to pass judgment on the decision made by presidents lies with the Church and SOLELY with the Church.

No. Wrong. While the Church has the authority to pass judgments when a public act is in objective violation of Church teaching, she does not make such judgements on purely subjective reasoning (sound thought it might be), nor does the Church pass judgement where she does not possess all of the relevent facts that the civic authority does. She may and often does issue opinions based on what is known and the preponderance of evidence, but that is not the same thing. Ultimately the judgement falls to the Lord God Almighty.

Jh,

I just think that if you really want Natural Law and to have it part of our system one needs to start with the legislature where the real action is at.

No. Wrong. While the Church has the authority to pass judgments when a public act is in objective violation of Church teaching, she does not make such judgements on purely subjective reasoning (sound thought it might be), nor does the Church pass judgement where she does not possess all of the relevent facts that the civic authority does. She may and often does issue opinions based on what is known and the preponderance of evidence, but that is not the same thing.

No, YOU are wrong. The Church has the right to make judgments on wars. Period. That it does not do so regularly with unambiguous force does not mean it does not possess this authority.

Your mistaken view is precisely one of the results of buying into the americanist separation of secular and sacred authority. Too many Catholics (usually so-called “patriotic” ones) fall for it. What you do not realize is that you are contributing to the marginalization of the Church by promoting such nonsense.

“There is nothing in Natural Law which states that a judiciary should act in contravention of the laws which are established.”

Because the Natural Law, i.e. the Law of Human Nature has no conception of “judiciaries.” However, the moral principles to which we’re oriented would suggest that laws that are not in accord with true justice–thus, not actually being laws should be contravened. Simple establishment makes no case in itself for not contravening it. Now you’ll argue that’s the role of the legislatior; I’m establishing that the Natural Law is not silent about the matter.

“I think there is limits to what a Catholic is compelled to do given the restrictions of his office, especially if he has taken an oath to be bound by those restrictions. Now, no Catholic is permitted to commit an immoral act regardless of his office, but that doesn’t mean he is obliged to use their office illegally in their actions.”

Well, I see your point. But this is again my problem with Scalia’s philosophy. I talked about it in a different thread. Effectively, I think the American conception of “justice” and “law,” at least in terms of judicial philosophy is based largely on positive law philosophy and Western Enlightenment philosophy rather than natural law thinking, and therefore, a proper notion of justice and law. Therefore, I think the “originalism and textualist” position might do-the-least-harm, it remains fatally flawed.

so how do you propose a “natural law” based judiciary should act? Do we need a legislature at all, just for administrative types of laws? Why not just a system of judges who base their rulings on their understanding of natural law? What reference documents for natural law would be used as a basis?

I reject this idea because it is akin to anarchy. Each judge applying his own understanding of a very broadly contentious set of rather non-specific rules.

I believe self-governance is in accord with natural law, and so the people guided by conscience establish the system of laws, the judges do not overturn them they simply apply them.

There may be certain cases where heroic violation of laws will not cause more harm than good, that any moral person should stand up against them, this can not be the general case.

Well, I am no constitutional law scholar. However, I do think that the “originalist” and “textualist” position contradict, to some degree, my understanding of both law and justice because of the inherent lack of consideration of natural law principles. This, I think, is a built-in recipe for disaster. Granted, while the philosophy itself might be, relative to other theories, the “lesser of evils” because of its do-no-harm mantra, it still can create quite a few ethical problems for Catholics.

I earlier used the example of pre-Civil War slavery. Hypothetically speaking, if there were a case regarding slavery before the United States Supreme Court, tied 4-4, and I’m a Catholic sitting on the U.S. Supreme Court, I certainly would not rule to uphold slavery as the law—and with no apology. It seems that the American notion of “justice” is not whether or not a law is in conformity with the natural law, reflecting the eternal law of God. No, rather, “justice” means having laws conform immediately to the written letter of the U.S. Constitution strictly and legal precedence. While this is not immediately a problem (I’m not saying that the U.S. Constitution should be irrelevant), while it is not in and of itself wrong—it does give rise to ethical issues.

From the originalist viewpoint regarding slavery, a Justice would have to rule in favor of an unjust law which contradicts the very essence of their title: Justice. An unjust law is not a law according to the scheme of the natural law. However, to an originalist, that point is irrelevant. If law is not meant to be in conformity with the natural law, which reflects perfect justice, then our inherent goal is not to uphold real laws at all but human decrees with no consideration or concern of objective conformity with the laws written into Nature. This, to me, seems to be clearly antithetical to Plato’s The Laws, Cicero’s On The Law, Aristotle’s Nichomachean Ethics, and St. Thomas Aquinas’ Treatise on Law which are four of the most important works in the natural law tradition. There is a fundamental disagreement then about the nature of law itself, about the nature of justice, and therefore, the likeliness to reach just conclusions, while not impossible certainly, is more difficult.

Alexander Hamilton put it this way: “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself; and can never be erased or obscured by mortal power.” Even the more secular-minded Thomas Jefferson agreed: The “only firm basis” of freedom, he wrote, is “a conviction in the minds of people that their liberties are the gift of God.”

These words are clearly a natural law commitment (and I’m not suggesting they are advocating it be used by the U.S. Supreme Court). Yet contemporary judicial philosophy is based largely on the Enlightenment-borne philosophy of legal positivism—that is, there is no inherent or necessary connection between the law and ethics, but rather laws are rules made by human beings entered into a social contract with no regard for moral objectivity because the contract is inherently relative.

If you consider such broad phrases such as “cruel and unusual” or “unreasonable searches and seizures,” it seems to me that the Founders presuppose that you would reference some sort of objective moral criteria that exists outside of the text of the Constitution to know what constitutes such activity. What is cruel? What is unusual? What is unreasonable? Unless there is some objective, unchanging standards that it is presupposed, that is known and can be known because of a common human nature with an unchanging law—the natural law—then it seems that the “concepts” of these things evolve and change with society; thus, this lends itself to the argument for a “living Constitution” that should be read in light of the relative values of the contemporary people. Yet the “originalists” pore scrupulously over the text for some criteria, the Founders (in a world yet to have fully abandon the natural law) may have presumed to be self-evident, or they commit to some legal precedence judged to be in conformity with their judicial philosophy versus what it may be the Founders actually intended. Again, to what do you reference as the criteria to define such “concepts” (cruel, unusual, unreasonable)? Their time period? Our time period? And barring natural law ethics, it becomes inherently relative, which requires one to inject their “personal values” into the constitutional text.

Simply put, I cannot fully embrace this judicial philosophy and am rather interested in projects to rethink, reasonably, how to interpret the Constitution and develop an American legal system that is more harmonious with the ongoing project of Catholic legal theory. Though, I will add that originalism does guarantee some sort of consistency in judiciary judgments and protects Americans from arbitrary changes in constitutional interpretation. Moreover, to fully reject originalism there needs to be a ready, clearly articulated criterion for interpreting the Constitution, otherwise the matter of law will be solely at the discretion of political inclinations of sitting Justices. Perhaps, at best, originalism constrains the worse temptation of Justices to overreach.

But it still remains that originalism isn’t perfect. It faces hermeneutic difficulties to which Justice Scalia admits, when he said, “It’s not always easy to figure out what the provision meant when it was adopted…I do not say originalism is perfect. I just say it’s better than anything else.” That is, anything else so far. So while I am not in favor of a hasty departure from originalism to an anything-goes Court, I’m not going to back the theory.

I still think that it poses quite an ethical dilemma and I’m weary of the Catholic support it gets despite the fact that its philosophical underpinnings, i.e. legal positivism, are fundamentally contradictory to Catholic moral and social thought. While I am sympathetic to the intellectual commitment to protect the integrity of the legal system and the constitutional order, I don’t think that requires an immediate advocacy of originalism over attempting to find some other way to interpret the Constitution. I am not convinced it’s all or nothing—either originalism or the “living Constitution” theory.

As Edmund Randolph set out at the Constitutional Convention, the goal was to “insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events.” Now, this quote, granted, can be misconstrued and interpreted as advocacy of an “evolving” doctrine in regard to constitutional interpretation. However, it seems to me, that the U.S. Constitution seeks to create a government that recognizes and respects the natural, inalienable rights that are self-evident in the natural moral law which are enshrined within the text of the Constitution. While the “essential principles,” which are moral, cannot change—as the moral law does not change; positive laws, however can. Different situations, different circumstances, different cultural values may have a need for different positive laws to best accommodate and promote human flourishing and the protection of human rights. (I’m not saying these laws come from or should come from the Court.) Now how such a view could reasonably and practically be played out in terms of judicial philosophy is quite a debate.

Nevertheless, originalism strikes me as too keen on preservation of the status quo, that is, order rather than on actual Justice, ifthe circumstances puts the two in contradiction. It brings to mind Machiavellian principles (which I think is the actual beginning of modern philosophy) specifically the re-definition of prudence as a purely pragmatist virtue oriented more toward some end, judging and weighing consequences, i.e. consequentialist and utilitarian ethics that masquerade as natural law thinking when it really is not. It seems the concern is not necessarily on what is moral, but to what works (pragmatist). Therefore, one of the Cardinal Virtues is employed in such a way that its immediate and direct concern is not necessarily intertwined with its sister virtue of Justice, real justice. And the divorce of the two, characteristic of modern thinking, is precisely what I am arguing against.

Again, I’m not constitutional law scholar, but I do find it curious that the framers of the Constitution did not indicate, in the text itself, how the Constitution should be read. I have no idea why. Perhaps they could not agree on a method themselves, as we cannot.

Though, I do wonder if one is arguing “original intent” or “original meaning,” does this include taking into account the fact that the words (diction), come from other common law traditions based largely around natural law thinking? Do you seek to understand the words in those light as to get a greater understanding of the words in light of the historical situation? This might be comparable to using the historical-critical method as a tool for scriptural exegesis. In other words, one would read the U.S. Constitution in light of the Declaration of Independence and the natural law tradition? Or, does one read the text strictly, isolated from such references?

My question arises because of this: The Declaration of Independence states that all men are created equal. The Bill of Rights establishes natural human rights. Yet in the U.S. Constitution there is legalized slavery. A natural law thinker would see that as a blatant contradiction. If such a matter were before a Catholic on the Supreme Court, should the Catholic uphold the unjust law as a matter of originalist intent even if contradicts the natural law and say, the majority of the United States citizens refused to conform with natural justice and outlaw it legislatively. For instance, what if abortion was a right written verbatim into the U.S. Constitution. Would I have to be complicit with an intrinsic evil until such a time that society changed its mind? I know I certainly wouldn’t. I am not sure if any oath or commitment can exempt you from stopping an objective moral evil. Consequences aside, as judging whether or not to end slavery or abortion based on how the populace will respond is judging the rightness or wrongness of the act based on the consequences–which again, is consequentialism and not natural law morality. The problem again persists.

This is the challenge and difficulty of natural law jurisprudence, of which, I am profoundly interested in. Perhaps, I should send Prof. Robert George, a proponent of the “New Natural Law Theory”, another email and ask him a few questions about the matter; he usually replies rather quickly.